Friday, October 03, 2008

Software Cultures Hardware Laws

Last week I attended an interesting event called Software Cultures Hardware Law organised by Queen Mary Intellectual Property Research Institute. I flew in from the frozen wastelands the same day of the event, so I missed a panel called "Meet the Jurists" chaired by Prof. Johanna Gibson and with the participation of Rt Hon Lord Justice Jacob, Mr Henry Carr QC and Mr Martin Howe QC . Apparently, there was discussion of some new game-related software patent case which sounded fascinating (if anyone has heard of this case, please let me know). There were some excellent presentations. Open Source expert Till Jaeger gave an introduction of the anti-DRM clause in the GPL v3. Guido Westkamp talked about international TPM protection. Ross Anderson provided a forceful and compelling argument against further criminalisation of copyright enforcement, and provided historic context as to why it really matters. However, I wanted to highlight a couple of presentations from two experts from the Software Information Industry Association.

Firstly, Scott Bain presented the best legal paper of the day on the issue of first-sale doctrine and its application to copyright law. Unsurprisingly, the SIIA and other content industry lobbyists are usually against first-sale doctrine. For those unfamiliar with it, the first-sale doctrine allows you to resell a CD or a DVD (forgive the dumbed-down analysis). Content owners usually argue that what they do is not a sale of goods, but rather a licence. By licensing the content, you never "own" the intellectual property you purchase, you are only acquiring permission to use it for a while. If you do not own it, you cannot resell it. This allows the market to be split into sectors, and allows software manufacturers to offer cheaper prices to hardware manufacturers, educational institutions, students, developing countries, etc. This OEM software is often resold by distributors at cheaper prices, a practice that has been the subject of countless cases (Vernor v Autodesk, and Wall Data to name a few). I have not given first-sale proper thought, but the fact that it was treated in Blizzard v MDY caught my attention. I have criticised the ruling elsewhere, but I feel that the one thing that the case may have going for it is the fact that it treats software as licensed material and not as a good, so I agree with Mr Bain's take on the subject.

The other presentation worthy of note was Keith Kupfershmid also from the SIIA. While I am an old hand at listening to hyperbolic rhetoric from the copyright lobby, I am still surprised by some of their tactics. Mr Kupfershmid is head of enforcement at the SIIA, and I was truly shocked by the level of his presentation. We were first introduced to the subject of enforcement by presenting us with three bad people. How do we know they are bad? They are pirates. OK, piracy is bad, but how much worse can these people be? Well, the first person highlighted was not only a pirate and sold software on eBay, but when the police raided his computer, they found child pornography! Yes, that's right folks, in one single slide software piracy was effortlessly equated with child molesting. You cannot make this stuff up! The other perpetrators were no better, keyloggers and hackers one and all.

But perhaps the most disturbing thing of the entire presentation was that it was a perfect example of the latest strategy from content owners against intermediaries. Google, eBay and PayPal are involved in "e-fencing", so they are no longer intermediaries, they are "facilitators". Yes, you heard right, they are instrumental in the crimes committed by allowing these evil people access to the market. We have seen that intermediaries are increasingly under attack from content owners, from YouTube to Google, passing though three-strikes. To me the implication of the entire presentation for intermediaries was very clear. So far your liability has been civil, but if you do not comply with our demands, criminal liability may not be far off.

Criminal enforcement, coming to a legislature near you.

Update: The case is Nova v Mazooma.

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